SI521 "Open Educational Resources at the University of Michigan" Open Textbook/Copyright

As noted in the quote above, copyright law is a significant factor in the creation and dissemination of Open Educational Resources (OER). In their current configuration, copyright laws pose a serious obstacle to the OER movement. As technology allows for lightning fast copying, mixing, remixing and sharing of various types of multi-media, copyright law often serves as an obstacle to innovation and creativity by protecting media for progressively longer periods of time. While no parties are arguing for a world without copyright, the obstacles faced by the OER movement and other consumers of media have provided substantial evidence that the laws could use adjustment to continue to allow copyright holders to profit from their efforts while accommodating advances in technology. The zoning restrictions governing use of educational resources within the relative privacy of a classroom do not match those prescribed for the public forum of the Internet. An educator in a private classroom setting has more freedom to use copyrighted resources than an educator using these same materials who connects with her students via the Web. Unfamiliar with the specifics of copyright within a public arena and overwhelmed by the complications copyright has added to the process, the educator wishing to distribute materials via the Web may reconsider what resources to use to make them available to her students. She may forgo use of the resource altogether, confused about how to make her materials available and free of copyright restrictions. In the end, if this unnecessary scenario continues to play and replay, students will unnecessarily suffer.

The OER community stands to benefit greatly from the advances which technologies now make possible. Technology has increased people’s access to and ability to more fully utilize resources. However, this benefit comes at a cost which must be better understood. In gaining such access, users have entered into a complicated, unfamiliar contract with largely one-sided terms. Unfamiliarity of the terms of a contract does not recuse one from being bound by the terms. If the governance structure seems unbalanced, the question to ask then is “Does a more balanced approach exist?”

This chapter hopes to clarify some of the complications presented by copyright. By better understanding copyright - what it is, why it exists, and what it challenges - the OER community can work through this problem and better serve its intended aim.

The concept of copyright was addressed by the framers in Article 1, Section 8, Clause 8 of the Constitution[1]' as follows:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries"

Copyright falls under the intellectual property domain. This domain sets rules and regulations governing how others may use a created work. Copyright refers to a series of protections (“rights”) given to an author of an original creation for a limited time. These rights allow the author to have primary control over use of her material, and thereby preserve for her a monopoly over her creation, but only for limited time. During this time, the author is positioned as the sole financial profiteer from her creation. This financial gain acts as an incentive for authors to create. The stability which comes from the financial gain also supplies the author a window in which she may securely create more original works. Thus, believing that good comes from creation, the copyright system is established to promote it. Along these same lines, it is held that further creation builds upon previous works. Thus, copyright sets a specified, defined time limit in which the author has this monopoly. After this time limit expires, the creation becomes a part of the public domain and is thereby accessible to all and available to be freely built upon.

It is advised to view these categories “broadly". For example, computer programs and most 'compilations' may be registered as 'literary works'; maps and architectural plans may be registered as 'pictorial, graphic, and sculptural works.'"[2]

Works “not fixed in a tangible form of expression” (For example, an improvisational speech or performance that has not been "written or recorded" and choreographic works which have not been "notated or recorded" are not fixed in a tangible form of expression.)

Works which consist “entirely of information that is common property and containing no original authorship” (Examples of these sorts of work include “standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources.")

In general, there are five basic rights, enumerated in Section 106[3] of Title 17[4] of the US Code which are given to the author to allow her control over and access to her creation.

These rights include:

The right to reproduce the work

The right to produce derivative works

The right to distribute copies of the work

The right to perform the work publicly

The right to display the work publicly.

Additionally, while copyright protection can be applied to an original expression of an idea, copyright cannot protect an idea or fact in itself. During the time in which her work is under copyright protection, the author determines how these rights are applied, whether she grants permission to allow access and, if so, under what conditions. The author may allow use in one circumstance but not in another circumstance. She may determine that a certain amount of money should exchange hands to allow use. She may decide that she does not want her work to be available at all for certain uses.

Copyright protects 'original works of authorship' as soon as the work becomes "fixed in a tangible form of expression."[2] This statement means that, to use a non-digital example, as soon as one puts pen to paper and creates an original work, be it a scribble or some notes on class material, the work is protected under copyright law. "Copyright [is] secured automatically upon creation."[2] In addition, "the fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device."[2] As long as a machine can understand the original work, then the work is protected by copyright. Copyright protection is granted whether the creator seeks the protection or even desires it. No registration with the US Copyright Office is necessary to secure copyright protection. Accordingly, original works which do not bear the copyright notice (C) are still protected. However, an author must register with the Copyright office prior to filing an infringement suit.

However, there are certain limitations to an author's rights to control access to her work. These limitations are detailed in Title 17 [3] of the US Code. One example of a limitation is the act of reading. If an author creates a work and has it published, that author has no control over who actually reads the creation, or how often an individual may read a certain passage, or how the information gained from the creation is shared.[5] In addition, the concept of fair use is also detailed in the Section 17 [3] of the US Code. This term applies to the various instances when something that is protected by copyright may be used without the copyright holder's permission. Some of these instances include reproducing a work for purposes “such as criticism, comment, news reporting, teaching, scholarship, and research.”[6]

Anyone who wants to use the work in a manner protected by copyright must seek permission from the copyright holder. As the author is allowed to sell her copyright if she deems it advisable or advantageous for her, the owner of the copyright is not necessarily the original author. The author has the option to bundle all five rights for sale or she may sell individual ones. The music and publishing industries offer examples of the selling of copyright. The business models in these two industries are predicated on the selling of copyright. The author has a creation but needs an audience. The corporation has an audience but needs a creation. A deal is struck that allows the author to benefit from access to this wide audience in exchange for signing over to the corporation the copyright protecting the creation. This selling of copyright creates unique ramifications. Even if a user sought permission to display the creation in a way the author would agree with and allow, the author’s viewpoint is no longer taken into consideration as he no longer owns the copyright. Rather, permission must be sought from the corporation now holding the copyright. This corporation’s reasons and motivations for allowing access to material may vary widely from those of the original author. The opposite scenario is also possible. That is, the profit motivations which prompt a corporation to allow access to a certain material may stand in direct opposition to the author’s intent behind the creation of that material. However, in this scenario, because the corporation holds the copyright, the corporation makes the final determination of permissible use. Within the academic community, while an author may receive a byline on a journal article, the copyright of that article rarely belongs with the author once the article is published. Due to the current business model in practice, the author usually relinquishes his copyright to the publishers of the journal in which the author's article will appears. Such is the trade made to secure publishing.

The question of when a specific copyright expires is more complicated than it appears. As detailed in the US Constitution,[1] copyright protection has a set term length of protection and protection is therefore described as limited. But, the limitation lengths vary because the laws detailing the length of term keep changing. In general, the current understood duration of copyright for a work created today is the duration of the creator’s life plus an additional seventy (70) years. However, since the laws continue to change concerning how long copyright protection lasts, how long a specific work is protected under copyright is a matter which requires some detection efforts. The flip side to this investigation terms the question as follows: is this specific work in the public domain yet? The sidebar graphic, which was selected from Bound by Law,[7] a highly approachable copyright resource produced by Duke University's Law School, illuminates how complicated that question can be.

This term applies to works that "may be used freely without the permission of the former copyright owner."[8] A work joins this category in three ways:

Upon completion of his work, a creator determines he wants his creation freely available for all to use. Then, his work would be said to be in the public domain.

A work also joins this category when it has existed long enough that the copyright protection placed on it has expired.

If certain requirements set by the copyright office were not met, then a work may also be categorized as in the public domain.

To better understand this phrase, ignoring domain and focusing on public may prove helpful. The, thinking of this word in terms of its opposite - private - this phrase may come into a clearer focus. Private means off-limits; public means open and accessible to all.

OER often includes material that qualifies as original work. Therefore, copyright is automatic and is granted to this original work as soon as the work is fixed in a tangible space. Because of these factors, the OER creator of these now-copyright-protected works must determine how to navigate the copyright laws and release his material for use. In addition, participants in OER may discover materials they wish to use, reuse, or redistribute in some manner. To do so, the material must be confirmed to be clear of copyright. The member finds himself facing many questions before working with the material. For example, first the participant must determine if the material qualifies for copyright protection. If it does, then the participant must determine if the work is still under protection or if the copyright protection has expired and the material is now available in the public domain. If the material is still protected, the participant must determine what sort of access to the material may be permissible without request from the copyright holder. If the OER member determines that permission for use must be obtained from the copyright holder, then the member must establish who the copyright holder is, locate that owner, and seek permission. Resolving questions like these takes time and effort.

Open access seeks, at a minimum, to make content available for viewing with no direct costs and with few technical barriers.

Open Content

Building on the concept of open access, open content allows the viewer the option, within specified limitations, to remix and reuse or redistribute the content.

Conversely, duplication, distribution, and the ability to make derivative works are three of the exclusive granted to the copyright holder under current copyright law. That the OER community perceives copyright protection as a barrier to its effort both to increase materials’ availability and to build on other creators’ work does not surprise.

Many fissures may appear between copyright defenders and OER advocates. Historical exploration of the depth of one such crack may provide some background to the current debate.

Americans have a strong belief in both the freedom of knowledge and the freedom to make money. At times, these two freedoms oppose each other and provide a point of tension between copyright defenders and OER advocates. Looking more closely at this tension, Americans have a long-held belief in freedom. “Give me liberty or give me death!” Patrick Henry proclaimed in 1775. This motto serves as a backbone, consciously or not, to empower and support many Americans’ perspectives. While definitions of liberty and freedom can vary, this discussion defines freedom as the availability of choice. Many Americans assume choice as an inalienable right. To properly benefit from this right then, one must first be given access to choice. One can interpret access to choice thus: one must be capable of accessing available information concerning the choice, to better inform the decision-maker. US federal 1966 legislation of the Freedom of Information Act [9] gives Americans legal methods to access information from U.S. government entities and further strengthens this core American tenet. In order to fulfill our right to choose, we have a right to know, a right to access information to better educate and inform ourselves. As Jessica Litman, the author of Digital Copyright, states, “We believe we are entitled to say what we think, think what we want, and to learn whatever we’re willing to explore.” [5] Americans view this belief as bedrock to the American life. In addition, Americans hold the ability to seek profit as another valued right worth defending. Having money, in America at least, often equates to achieving happiness. Thus, US history again provides an example of how deep this belief runs in the American conscience. The Declaration of Independence grants Americans “certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”[10] Accordingly, capitalism underlies many an American philosophy.

The tension between these two American beliefs - the right to know and the right to profit - can cause conflicts. The OER community supports society’s right to know and fosters access to informational resources. Copyright defenders favor a more select group’s right to profit from proprietary material and content. While no impending riots or life-threatening skirmishes seem likely in the context of the OER community, a broader, more implicit danger remains possible. That is, the danger of dialogue to break down and resolution to remain limited. Open communication remains necessary for both sides to better understand each other and reach a negotiated compromise. Open communication will not occur if either side holds too firmly to a perceived American right. Hopefully, the information and viewpoints provided throughout this chapter and this text will help foster conversation and sidestep the danger present when talking stops.

Copyright laws also have a long history within the American belief system. The US Constitution speaks of them. However, freedoms of knowledge and profit explored above have held Americans’ collective interest more securely. That copyright laws have not affected the everyday American in an overt fashion until recently may point to copyright’s low predominance factor. Until more recently, copyright primarily affected the corporate, commercial world. Thus, Americans by and large have not tracked what copyright laws dictate or why. Perhaps, the general American society’s lack of vested interest in copyright laws has allowed a complex maze to evolve in this corner of law. Contrary to the origins of copyright law, the current developments of these laws seem to neglect, intentionally or otherwise, what the larger whole will resemble. Recently, copyright laws seem to develop in a piecemeal fashion, prompted by and mostly benefiting special corporate interest groups vying for regulations which meet each specific group’s requests. As a result of these specific interests, copyright law has become a highly specialized area demanding specialized lawyers who charge high rates to compensate for their expert knowledge.

However, more and more, copyright laws affect the general citizen. This change has swelled in the advance of technology, most significantly the Internet. Many Americans now take for granted having low-barrier access to information and content materials made available via the Internet. Moreover, these users feel comfortable accessing resources, mixing and re-mixing them, and then redistributing them, all with no ill effect. A mere twenty years ago the power players of the entertainment industry reserved the ability to produce high-level content in the arenas of music, writing, and film for themselves. Corporations with the most money had the most power and thereby dictated the rules of engagement, formalizing these rules in copyright law. Now, these corporations do not hold the same power. The Internet, by some measure, has begun to equalize the field. Private individuals without corporate backing may now create and widely disseminate movies, music, writings, and more. The individual’s new ability to control more fully the creation process poses a threat to the recent Industry business model. By adding the individual more fully as an equal player in the creation game, the game changes entirely. However, remember that talks between Industry and the US government determined the rules of the game, i.e. copyright laws. These laws have not changed. Thus, the individual, the general American currently wishing to participate in creating and distributing creative works needs to abide by the copyright laws negotiated by and for Industry. These laws often do not consider the individual’s specific concerns. The laws remain complicated and onerous for an individual to navigate alone.

US copyright laws hold some central benefits for the OER community. When a balanced approach to the law allows both the author and the public to benefit from the creation, copyright’s intent becomes analogous to the OER community’s goal. In recognizing the importance of knowledge creation, the law has created an infrastructure of much use to this community.

The OER community aims to share knowledge to advance society. This community builds on prior knowledge to generate new knowledge. This new knowledge fosters growth of yet even more knowledge. One can think of knowledge production like a wheel that, with hope, never stops. With knowledge sharing, one can next capitalize on the shape of this wheel to harness the power of water and aid in the transport of goods and people. Sir Isaac Newton, from whom society has greatly benefitted, stated it well in 1676 in a letter to Robert Hooke when he acknowledged his reliance on prior knowledge creators: "If I have seen further it is by standing on the shoulders of giants."[11] In fact, the world may not have Newton to quote if not for Bernard of Chartes. In 1130, Chartes supposedly said: “We are like dwarfs standing [or sitting] upon the shoulders of giants, and so able to see more and see farther than the ancients.”[11]

Similarly, the origins of US copyright law derive from encouraging knowledge production: "To promote the progress of science and useful arts.”[1] The drafters of the original law designed it to promote progress in two ways. First, the law grants “to authors and inventors the exclusive right to their respective writings and discoveries”[1] so that the authors alone may benefit from any financial success realized from the creation. These original drafters used the promise of money as a motivating incentive to achieve this aim of knowledge creation. Secondly, these drafters recognized that the monopoly secured by the creator should exist only “for limited times.”[1] After this time expired, the creation would be released to the public domain.

The OER community can admire the foresight of the creators of US copyright law. Because this concept already exists within our Constitution, the fight to recognize the importance of knowledge creation does not need to be initiated. Now in a more nuanced and more conservative phase of development of this infrastructure, the law needs monitoring to confirm future amendments remain in line with the Constitution’s intent. For, while it can be said that the technological inventions of the digital age have increased access greatly, these inventions can also limit access. Technological tools now exist to prevent legal copying of digital objects for private, non-public, and thus non-copyright infringing use. According to John V. Pavlik, New Media Technology, 1996, while "[e]arlier generations of technology . . . have presented challenges to existing copyright law . . . none have posed the same threat as the digital age." [12] Thus, admiration of the drafters’ foresight alone will not hold. Rather, the OER community must also exemplify their collective vision and help copyright strike a better balance.

The design of the law to have expiring limits indicates how largely the public domain factors into the generation of additional knowledge. Consider this statement made in 1994 by the U.S. Supreme Court in Fogerty v. Fantasy: “The monopoly privileges that Congress has authorized, while intended to motivate the creative activity of authors and inventors by the provision of a special reward, are limited in nature and must ultimately serve the public good. The limited scope of the copyright holder’s statutory monopoly reflects a balance of competing claims upon the public interest. Private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The ultimate aim is . . . to stimulate artistic creativity for the general public good.” (Fogerty v. Fantasy, Inc., 510 U.S. 517 [1994]) The emphasis on and the repetitions of "public good” and “public interest” highlight the Court’s opinion of the worth of the public domain. Additionally, Justice Sandra Day O’Connor stated the following in 1991: "The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.' To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art." (Feist Publications, Inc. v. Rural Telephone Service Co., 499 US 340, 349 [1991]) [12] Consider how Science and Art may have developed without the ability to build upon prior creations within a reasonable amount of time.

The OER community can appreciate the US copyright law’s built-in fair use clause as a sign of the US government’s commitment to education. Again, in the US, fair use is a term applied to the various instances when someone may use something protected by copyright without the copyright holder’s permission. Some of these instances include reproducing a work for purposes “such as criticism, comment, news reporting, teaching, scholarship, and research.”[6] The OER community will duly note the emphasis this clause places on teaching, scholarship, and research. While one of the earliest landmark cases to discuss fair use as a concept dates back to 1841 in Folsom v. Marsh, the doctrine of fair use was codified in Section 107 [3] of the Copyright Act of 1976. Essentially, this clause creates certain settings in which fair use of copyrighted material can be employed legally.

Namely, these settings include the following: a creative setting which allows "use in a parody of some of the content of the work parodied"[6]; an educational/scholarly setting which protects the three usages of (1) a "quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations,"[6] along with (2) "reproduction by a teacher or student of a small part of a work to illustrate a lesson"[6], and (3) "reproduction by a library of a portion of a work to replace part of a damaged copy"[6]; a general setting which protects the “quotation of excerpts in a review or criticism for purposes of illustration or comment"[6]; use in a news reporting setting for "summary of an address or article, with brief quotations, in a news report"[6] and for "incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported;”[6] and finally for use in a legal setting for "reproduction of a work in legislative or judicial proceedings or reports."[6] Conceivably, at least four of these five settings offer a safe harbor for the OER community. The creation of this clause is not an accident. This clause illustrates the US government’s recognition that access to knowledge helps society become better.

The institution of copyright has led to the tremendous repository housed in the US Library of Congress (“LOC”). Through the use copyright law, the LOC has collected, catalogued, preserved, and maintained a vast repository of information and knowledge. The LOC then makes this knowledge available to and shares it with the US public “to sustain and preserve a universal collection of knowledge and creativity for future generations.” [13] While making use of this repository, the OER community also hopes, in a sense, to mirror this accomplishment on a potentially broader scale.

Finally and significantly, the OER community receives a non-linear benefit from US copyright law. The OER community may modify the law to fit the community’s aims. Creative Commons (“CC”), a globally recognized, nonprofit organization currently offers hybrid formats of copyright licenses in this vein. CC, in operation since 2001, is well on its way of cementing its brand, making the CC licensing options more recognizable, viable, and legitimate in the digital world. As an example of how CC thinks within this framework, CC has modified “all rights reserved” to the notion of “some rights reserved.” This distinction allows the original author to determine exactly how her creation can be used by others. In addition and importantly, this distinction, this co-option of the copyright law still allows the author to utilize the strength of the law to enforce the permission levels she has set to govern use of her work. This allows her redress for any subsequent misuse of her work. It is important to emphasize the contribution that CC, with its hybrid licensing options, has made in broadening the scope of the discussion concerning how to expand open access yet work within the U.S. law.

The OER member encounters some challenges when deciding what resources to use and how. He must assess the value gained from using the resource against the effort of clearing copyright. Or, he must assess his comfort level with liabilities potentially incurred in using the good faith fair use defense doctrine. In addition, the large length of time copyright law restricts access to building on new creations depletes the public domain. Thus, society’s opportunity to benefit widely from this commons suffers accordingly.

The OER community values open content: knowledge content “free to use, reuse, and redistribute.”[14] Without the ability to freely access materials and then extrapolate and re-purpose them to expand society’s understanding of what is possible, progress slows. US copyright laws have helped to hasten this slowing of progress. These laws have grown increasingly complex making it difficult to understand what the laws permit. An inability to understand these laws creates confusion and, fearing recrimination from copyright holders, OER members shy away from works protected by copyright. This reaction is often known as the chilling effect of copyright. The copyrighted work then languishes and the knowledge to be gleaned from and built upon it remains cloistered.

If someone braves her fear of the complexities of copyright law, she may encounter additional obstacles. First, she must determine how to clear copyright. This process consumes time and money. The interested OER member must identify the copyright holder’s name and whereabouts. Tracking this information may involve a lengthy process, cutting into an otherwise financially lucrative workday. If the member successfully locates the copyright holder, it remains uncertain if this holder will grant permission for use. If the holder refuses to grant permission, then the effort to track down the copyright holder proves in many ways a waste. If the holder grants permission, the permission given may not equal what the seeker sought. In addition, fees provided to the copyright holder in exchange for use must be accounted for and can be significant. Alternately, one may prove unsuccessful in tracking down the copyright holder altogether. This result leads to an inability to clear the copyright on what is known as an “orphan work.”[15] Encountering such an unclaimed work stymies the process of clearing copyright until the copyright holder can be located. This could be an indeterminate amount of time.

The OER member may encounter a second obstacle when braving the complexities of using copyrighted materials. A member may test the “good faith fair use doctrine”[16] by using the material without clearing copyright. Should a copyright holder sue for infringement, then the OER member tries his luck in the court of law. Fair use claims have always been decided on a case by case basis. “The courts have repeatedly said that . . . there is no one fact about the copying at issue that will, by itself, make the use fair or unfair. All four factors must be examined, weighed, and balanced.”[16] The four factors at issue are (1) the character of the use; (2) the nature of the work to be used; (3) the quantity of the work to be used; (4) the effect the intended use would have in the marketplace for the original.[16] Therefore, should the case ever go to trial, the risk of liability remains clouded as one cannot rely upon the precedence of law. A particular judge and/or a particular jury draw may hold the power in determining the outcome. The inability to assess the risks attached with using copyrighted material under the good faith fair use doctrine creates uncertain footing which may prove uncomfortable for OER members.

The first Copyright Protection Act in 1790 set the term length at fourteen years and allowed this term to be renewed for an additional fourteen years. Thus, the material could be protected for a total of twenty-eight years before it would be released to the public domain and accessible to all. In 1831, twenty-eight years was extended to forty-two years with an amendment to the Act; (the initial term was extended to twenty-eight years while maintaining the renewal length at fourteen years). With the 1909 Act, forty-two years was extended to fifty-six years; (the initial term remained at twenty-eight years while the renewal length was extend to twenty-eight years). After the 1976 Act, fifty-six years was extended to the unknown length remaining of an author’s life plus fifty years. In 1998, this life plus fifty years was extended to life plus seventy years via the Sonny Bono Copyright Extension Act.

It should be noted that these terms do not directly apply to all works. Rather, different time limits exist depending on specific qualifications including, but not limited to, the following: when a work was created, when it was published, whether the work was subject to and accordingly met certain notification requirements which existed at certain points, and whether the work is a product of corporate authorship. These specifications and others add to the complexities of navigating these laws.

In short, it can be loosely understood that copyright time limits have expanded from a possible twenty-eight years of protection to the current time limit of the author's remaining life plus seventy additional years. Only after completion of this seventieth year will the work finally be available in the public domain, free for use, reuse, and redistribution. Not taking into account the probability of how long the author may live, seventy years alone is a long time to wait for access to building on this knowledge. And with those seventy years goes the strength of the commons that is the public domain. And with those seventy years goes the knowledge that may have been gained.

Options do exist to help the OER community navigate around the automatic securing of copyright and/or allow for more sharing of materials. These options give an OER member more control over the terms of use of her material. This chapter will conclude by briefly discussing one such option. The Open Data chapter may offer further suggestions, including attaching a Community Norms document. [17] While the models discussed in the Open Data chapter refer more specifically to the Science community, the concepts underlying these models deserve further exploration by the larger OER community. After all, the OER community may benefit from exploring what results when members forgo the rules of copyright laws altogether and instead subscribe to the norms of a community of practice.

Creative Commons (“CC”), a globally recognized nonprofit organization founded in 2001, has devised a way to allow for use, reuse, and redistribution of materials within copyright laws. As posted on its website, CC's motto is “Share, Remix, Reuse – Legally.” [18] The corporation is “dedicated to making it easier for people to share and build upon the work of others, consistent with the rules of copyright.”[19] In other words, the corporation does not present an “alternative to copyright” [20] but designs licenses which “work alongside copyright,”[20] within the laws of copyright.

CC issues six primary copyright licenses which can contain up to three different conditions. All licenses must include the first condition: Attribution. Attribution allows for others to “distribute, tweak, and build upon your work, even commercially, as long they credit you for the original creation.”[21] In addition to the Attribution condition, a creator may choose one or two of the following conditions: Share Alike, Noncommercial, and No Derivative Works.[21] Share Alike allows use of material as long as the new user licenses the material under the same conditions the original creator has chosen. Noncommercial permits use of the material but the new user cannot charge for the material. No Derivative Works, the most strict condition, allows only verbatim use. CC offers licenses which apply directly to software (CC-GNU GPL,[22] CC-GNU LGPL,[23] and BSD.[24]) It also issues a license which allows an OER member to immediately release her work to the public domain, [25]if that is desired.

With this freedom of choice to select among desired conditions, a creator regains control of how her material may be used by others and sidesteps some of the complications of copyright law. This co-opting of copyright law is exceedingly important to the OER community. It allows the OER member with an original work to clearly designate a legal method of sharing her work. This CC license designation then establishes a defined path for other OER members, wishing to build upon this OER member’s creation, to follow. CC licensing has changed the game from "all rights reserved" to "some rights reserved."

OER community members should not frame the conversation concerning US copyright laws in terms of authors’ rights. Rather, the community should frame and understand this discussion in terms of knowledge creation. The community should pose, and pose often, the following question: how strong, how vast and expansive does the US want its public domain to be? For, the growth or depletion of this commons will either foster or impede the US’ capacity for future knowledge creation accordingly.